What the Supreme Court could do to the Senate next week

OTTAWA — Canada’s top court will clarify the future of Senate reform next week.

On Thursday, the Supreme Court of Canada said it will deliver its opinion on the Harper government’s plans for the Senate April 25, earlier than many had anticipated – and just before parliamentarians return to Ottawa following a two-week break.

Whatever the top court determines will re-ignite a longstanding debate over the red chamber that has flared anew since the Senate spending scandal became public more than a year ago.

Once the court rules, the federal government will know how much power it has on its own to reform or abolish the Senate, or how much buy-in it requires from the provinces to make changes to the upper chamber. Here’s a guide:

The lay of the land today:

The prime minister appoints senators. Once they’re in, senators keep their jobs until age 75, death or, if they choose, earlier retirement.

What the government wants to do:

Prime Minister Stephen Harper wants to set term limits and allow provinces to hold elections to select Senate nominees. The prime minister would then appoint senators from that list. The federal government wants to be able to move ahead with these initiatives without having to get provincial permission to do so. It also wants the ability to abolish the Senate — with some provincial input in that process. The question is: how much?

Key terms: “7/50” vs. “unanimous”:

The Supreme Court is not being asked whether the Senate should be abolished or changed — only how the government must proceed if it wishes to do these things. The court will provide guidance on how much provincial consent is required for any changes to the Senate. It could decide, for instance, that the consent of seven provinces with half the population — the so-called “7/50” rule — is needed for certain changes, including abolition. Or it could also say every province has to sign off on any proposal — unanimous consent. Either of these routes requires opening up the Constitution, which would mean potentially messy negotiations among the federal and provincial governments.

The implications:

Harper has long promised — and thus far not delivered — Senate reform. He has even said that if the upper chamber can’t be reformed, it should be abolished.

The NDP wants to see the chamber abolished.

The Liberals have argued it’s possible to reform the Senate without opening up the Constitution.

The legal decision will carry political implications for each party heading towards an election in 2015.

The context:

Observers have suggested that while the Supreme Court is focused on the legal and constitutional issues in this case, it doesn’t make its rulings in a vacuum, detached from the wider feelings of the nation.

One former and one current senator – Mac Harb and Patrick Brazeau, respectively – are charged with fraud and breach of trust, while charges may be laid within weeks against two suspended senators, Mike Duffy and Pamela Wallin. Earlier this week, the RCMP said it would not lay charges against a top aide to Harper who was involved in helping Duffy repay questionable expense claims.

Meanwhile, the federal auditor general is scrutinizing the spending of senators.

It is against this backdrop that the Supreme Court will hand down its landmark decision – whatever it is.

jpress@ottawacitizen.com

Twitter.com/jordan_press

Who agrees with whom so far?

Which provinces are siding with the government on term limits?

Ontario is supporting the government on term limits, but only if the limits are for nine years or more.
Saskatchewan is taking the same stand on term limits, but only if they are 10 years or more.

Which provinces are siding with the government on abolition of the Senate?

Alberta, Saskatchewan and British Columbia.

Which provinces are siding with the government on Senate elections?

Alberta and Saskatchewan.

What do the others say?

Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Quebec and New Brunswick say term limits and Senate elections require the consent of seven provinces with half the population (known as the “7/50” rule); they say outright abolition requires the unanimous agreement of the provinces.

British Columbia argues the 7/50 rule applies for any reforms.

Quebec argues it must give consent for the federal government to eliminate or change a special requirement in the Constitution for Quebec senators to either own $4,000 of property or reside in their senatorial district.

Nunavut and Northwest Territories argue Senate abolition can’t take place without consultations with northern peoples.